Yale law professor on ‘Lincoln’s Code’ and the laws of war

Every generation in American history has had its own set of moral dilemmas, controversies, and questions about the laws of war,” said John Fabian Witt, the Allen H. Duffy Class of 1960 Professor of Law, speaking on Nov. 15 at the Yale Law School. Students, faculty, staff, and members of the public attended his talk on “Lincoln’s Code,” part of the university’s week-long series of events commemorating Veterans Day and the 100th anniversary of the World War I armistice.

The event was organized by Tristan Hood ’21 LAW, a veteran of the U.S. Air Force who did two combat tours of duty in Iraq and Afghanistan, and it was sponsored by the Yale Law Veterans Association, a student group.

John Fabian Witt
John Fabian Witt

Witt has studied the American laws of war from the Revolutionary War through World War I, but he is particularly interested in a set of rules developed for the Union Army and published as an order by President Lincoln in 1863. They are the focus of his book “Lincoln’s Code: The Laws of War in American History,” winner of the 2013 Bancroft Prize and a Pulitzer Prize finalist, among other honors.

Witt explained that he set out to solve “a great historical puzzle”: why, in the winter of 1862-1863, the Lincoln administration asked Francis Lieber, a noted legal scholar, to draw up new guidelines governing armed conflict. “Usually laws of war are put forth in the aftermath of conflict,” he said. But in this case, fighting was still underway and Lincoln was even planning to intensify the war effort.

The resulting work, issued as “General Orders No. 100: Instructions for the Government of Armies of the United States in the Field,” addressed such questions as how to distinguish among enemy combatants and the treatment of civilians.

But why did the Union Army establish new rules of war at this particular moment? “The key pivot,” Witt said, was the Emancipation Proclamation, which stated that all enslaved people living in the states in rebellion were free. Lincoln issued the preliminary proclamation in September 1862, and the final version took effect January 1, 1863.

At least a century of American legal tradition had held that enslaved people were outside the laws of war, Witt explained. They were, according to this thinking, property, not people, and therefore could not be considered soldiers. But the Union Army guidelines asserted that the skin color of the solider in uniform was irrelevant. It included a dozen or more sections dealing with the treatment of enslaved people in wartime.

The code’s significance was wide-ranging but not always predictable, according to Witt. One of the unintended consequences was the humanitarian crisis arising out of wartime prisons. In response to the Union’s arming of enslaved people and free people of color, the Confederacy insisted that captured black soldiers would not be exchanged. Prisoner exchanges between the two armies were suspended, and 55,000 men died as prisoners behind enemy lines. 

Lincolns Code book cover

Lieber’s work had an afterlife beyond Appomattox, Witt noted. In the late 19th century, several European powers considered the American rules when crafting treaty negotiations. The Geneva Conventions, adopted after World War II, represent a more recent attempt to limit and restrain war’s destructive capacity, he explained.

Witt suggested the Civil War-era history has important lessons for contemporary debates over legitimate and illegitimate targets, proportionality, asymmetrical fighting, and other key issues in modern warfare.

Laws of war provide moral benchmarks that guide soldiers. They are a desperate, last-ditch attempt to retain moral questions in the midst of excruciating situations,” Witt said. “At the end of the day, we want to know what is the right thing and what is the wrong thing.”

Grave moral problems attach to the promulgation of the laws of war,” he said. “Are the laws of armed conflict doing today what they did in the Civil War — enabling and facilitating [war], rather than restraining it?”

A question-and-answer period followed Witt’s remarks.

Hood, the event organizer, said he hopes the Yale Law Veterans Association will be able to offer other opportunities for veterans and non-veterans to connect at the Law School.

Veterans offer a very distinct and constructive perspective, and I believe hosting more events will open the doorway to more conversation,” Hood said. “Professor Witt is a titan among legal historians. I, along with the other veterans, are grateful he spoke today.”

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Part of the In Focus Collection: Yale remembers World War I